Before
the court is a Motion for Partial Preliminary Injunction
filed by plaintiff Pegasus Equine Guardian Association
(“Pegasus”). Doc. 43. Defendants, the United
States Army and Brigadier General Gary M. Brito in his
official capacity as Commanding General of Fort Polk
(together “the Army”), oppose the motion. Doc.
51. Also before the court is the Army's Motion in Limine
to Exclude Expert Testimony and Unproduced Evidence from
Preliminary Injunction Hearing [doc. 57] which plaintiff
opposes. Doc. 65.

This
matter has been referred to the undersigned for the purpose
of issuing a Report and Recommendation. Doc. 47. A
preliminary injunction hearing was held on January 30, 2018.
Doc. 60. Plaintiff and defendants have filed post-hearing
memoranda. Docs. 64, 66, respectively. The motions are now
ripe for decision. For the following reasons, IT IS
RECOMMENDED that plaintiff's Motion to Submit
Extra-Record Evidence [doc. 49] be GRANTED
insofar as that material is considered in our review of the
request for injunctive relief, and that the defendants'
Motion to Strike and Motion in Limine [docs. 52, 57] be
DENIED. IT IS ALSO
RECOMMENDED that plaintiff's Motion for Partial
Preliminary Injunction [doc. 43] be DENIED.

I.

Background

This
litigation arises from the Army's plan to remove
undomesticated horses from Fort Polk and surrounding areas.
Doc. 3, att. 1, p. 1. Pegasus filed suit in the Middle
District of Louisiana to prevent the Army from removing any
horses until it conducts a more thorough review of its plan
under the National Environmental Protection Act (“N E
PA ”), 42 U.S.C. § 4321 et seq., and the
National Historic Preservation Act (“NHPA”), 54
U.S.C. § 300101 et seq. Doc. 3, att. 1, pp.
22-23. The case was subsequently transferred to this court.
Doc. 25.

For
more than two decades, the Army has sought solutions to
safety issues presented by “trespass horses” on
Fort Polk and the Peason Ridge area where the Army conducts
training operations. See
JRTC-E-002984.[1] According to the records presented the
horses have caused traffic accidents [JRTC-F-000004-72,
98-259], entered business and residential properties
[JRTCJRTC-B-000038, -56, -157-180; JRTC-F-000098-259], and
prevented soldiers from conducting training exercises or
threatened their safety during operations. JRTC-B-000055,
-181- 191; JRTC-F-000082, -98-259. The Army conducts
“live fire and maneuver” operations in the
training areas [JRTC-B-000100], which have “concertina
wire, earthworks such as tank ditches, ” and other
man-made obstacles [JRTC-B-0086] that put the horses
“at continuous[] risk of injury or death.”
JRTC-B-000057. Some horses are also malnourished due to
inadequate forage [JRTC-B-000112] and may spread infectious
diseases. JRTC-B-000054.

In
2015, after previous efforts failed, [2] the Army again considered
how to remove the horses from training areas. JRTC-B-000022.
The current plan, by which it seeks to eventually remove all
horses from the training areas, was implemented in August
2016. JRTC-A-000001-6. From October 2016 through January
2018, the Army removed more than one hundred horses and
placed them with non-profit organizations. Doc 51, att. 2,
pp. 3-4. On January 19, 2018, it estimated that between five
hundred and seven hundred horses remained on the base and
training grounds. Doc. 51, att. 2, p. 7. The Army expects to
be able to capture only between ninety and one hundred twenty
horses in the next six to nine months and that it will take
approximately three years to remove all the horses.
Id. at 6-7.

Pegasus
asks the court to consider extra-record evidence when
determining whether to grant a preliminary injunction.
See doc. 49. As we note above the Army filed a
motion to strike and motion in limine asking that we exclude
any evidence that does not appear in the administrative
record. Thus, before we reach the issue of whether to enjoin
the Army from removing horses, we examine what evidence we
may consider.

II.

Law
& Analysis

A.
Extra-Record Evidence

This
matter comes before the court as a review of a final agency
action under the Administrative Procedure Act. See
doc. 1. In the Fifth Circuit the “record rule” is
a “bedrock principle of judicial review that a court
reviewing an agency decision should” consider only the
administrative record but not evidence presented for the
first time in the court proceeding. Goonsuwan v.
Ashcroft, 252 F.3d 383, 390 n. 15 (5th Cir. 2001)
(citation omitted). There are several recognized exceptions
where the court may consider extra-record evidence, however,
including “in cases where relief is at issue,
especially at the preliminary injunction stage.”
Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Army has moved the court to exclude plaintiff&#39;s
extra-record materials and the testimony presented at the
hearing. Docs. 52, 57. Defendants contend that the
court&#39;s consideration of extra-record evidence would
&ldquo;subvert the entire administrative review
process.&rdquo; Doc. 57, att. 1, p. 3. They state that
&ldquo;[t]estimony that merely disputes the substance of
analysis in the Administrative Record is inadmissible&rdquo;
and that extra-record cannot be used &ldquo;to determine the
correctness or wisdom of [an] agency&#39;s decision.&rdquo;
Id. at 4 (citations omitted). Defendants also argue
that the court should focus solely on the administrative
record because Pegasus &ldquo;has not identified an
applicable exception to the record rule&rdquo; which allows
the court to consider the testimony and evidence presented at
the hearing. Id. Pegasus opposes ...

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